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Anti-discrimination laws shouldn’t trump First Amendment

October 18, 2000

News stories in The New York Times referred to the Boy Scouts as “almost un-American” and “something akin to a hate group” for refusing to allow homosexuals to become scoutmasters. Both slurs were attributed to vague, unnamed sources.”Almost un-American”? This must be a large category, since a Newsweek poll found that the public supports the Supreme Court’s decision 56 percent to 36 percent. Also in this nearly un-American class would be several state Supreme Courts (four out of five said the Scouts are entitled to determine their own membership without government interference) and virtually the entire U.S. House of Representatives, which voted 362-12 to sustain the Scouts’ federal charter.

“Akin to a hate group”? Only if traditional morality is now officially a form of hate. Boy Scouts are explicitly taught to respect all their fellow citizens. The Scouts issue no anti-gay vitriol and have joined no political alliance to oppose gays. The Scouts’ brief to the Supreme Court said simply: “We can respect the plea of many gay and lesbian Americans not to have the majority’s morality imposed on them. By the same token, we ask that a contrary morality not be forced upon private associations like the Boy Scouts …”

That is the central issue here. Gays, supported by most of the media and the cultural elite, see this purely as a issue of discrimination and access. But there’s another way of looking at it: Can the moral vision of a dominant elite be forced on private associations under cover of anti-discrimination laws? Understandably, gays want homosexuality to be normalized. The Scouts do not wish to be conscripted into the normalization process. In effect, the Scouts said to gays, take your case to the American people and persuade them if you can, but do not force us to be part of your effort.

Elite notions were on full display in last year’s 7-0 ruling against the Scouts by the New Jersey Supreme Court, the most radical of the state courts. Chief Justice Deborah Poritz dismissed the traditional moral objections to homosexuality as “little more than prejudice.” But it isn’t the job of any justice to deride or dismiss anybody’s moral code. And it isn’t the job of a judge to psychoanalyze a party to a case and announce that principle isn’t involved, merely prejudice and antipathy.

In overruling the New Jersey court, the Supreme Court got it right. The court ruled that anti-discrimination laws can’t trump First Amendment rights of free speech and free association. Forcing the Scouts to retain an avowedly homosexual assistant scoutmaster “would significantly burden the organization’s right to oppose or disfavor homosexual conduct … (it) would, at the very least, force the organization to send a message, both to the youth members and to the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”

The principle is obvious: Expressive associations must not be required to include those who step on the group’s message. Gay parades must not be forced to include contingents of gay-haters, and racists have no right to membership in the NAACP. Richard Sincere, a gay activist and libertarian, says that forcing the Scouts to accept gays “threatens all of us who want to set standards for our organization, including gay men and lesbians.”

One effect of the Scouts’ case is to reveal the controversial side of anti-discrimination laws and regulations. Though written in the bland and unassailable language of brotherhood, they give critics of private groups “a public hammer with which to beat the groups they oppose,” said Richard Epstein, professor of law at the University of Chicago. They also provide a way for outsiders to reach into a dissenting group to help determine its membership, policies and officers. At Tufts University, an evangelical student group, which has theological objections to homosexuality, was punished for declining to allow a bisexual woman into a leadership position.

The Supreme Court’s ruling in the Scouts’ case is a significant one, clearly setting limits on the coercive use of anti-discrimination laws against private associations. The elite view of the world was overruled here, but it was a 5-4 decision and is not a sure bet to last. “The four dissenters are non-persuadables,” said Epstein. “If they get a fifth vote, they would overturn this in the twinkling of an eye.” Cases such as this are directly at stake in the very different court nominations that George W. Bush and Al Gore would likely make.

Now gay groups are pressuring the United Way, companies and governments to turn against the Scouts. Trying to convince donors to withhold money from the Scouts is legitimate. People who disagree can bypass United Way and donate directly to the Scouts. That’s the way a free society operates. But the attempt to use state power to punish the Scouts for exercising their constitutional rights is another matter. Government can’t single out the Scouts for retaliation. If parks, schools and streets are open to other groups, they must remain open to the Scouts, too. The country has to weigh the issue without the government’s thumb on the scale.

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